They've got to be 100% free to agree.
‘Free agreement’ is a concept that means someone has to really, truly, 100% feel comfortable with having sex or doing anything sexual in order to be able to give consent.
Depending on which State or Territory you’re talking about, part of the legal concept of ‘consent’ includes the concept of free agreement, legislated because there are situations in which people say yes to having sex without actually wanting to, or feel like they can't say no.
Situations in which you can and can’t give consent are different in each State and Territory. You may want to visit the Youth Law Australia website and send them a private ‘lawmail’ if you have specific questions about free agreement in your area.
Below are some of the situations in which people are not able to give free agreement – but you need to keep in mind this is only a selection of examples because, once again, the situations/contexts in which you can and can’t give consent are different in each state and territory.
You (or your partner) cannot give consent if you (or they) are, for example:
- severely affected by alcohol or drugs
- afraid somebody will be harmed (e.g. "If you don’t […], then I’ll […]")
- tricked or deceived (e.g. agree to one type of sexual act that turns into another type of sexual act that they hadn’t agreed to)
- asleep, unconscious or semi-conscious
- incapable of understanding, or mistaken about what you’re consenting to
- believe you or they can’t, or have no right to say no
While the laws aim to protect people from sexual assault, real protection only comes about when people fully understand, respect, and feel confident enough to provide clear, 100% consent when it really matters. And that can only happen when everybody involved knows they need to recognise and understand consent. So, remember to check in with each other and make sure everybody’s ok with what’s happening.
Aside from the legal ramifications, you just don’t want to look back on a sexual situation where someone felt uncomfortable or unclear about what was happening. If someone feels pressured into sex by someone who has any kind of power over them, or because they’re unclear about what’s happening, they’re not consenting.
’Sex’ without consent, or sex without free agreement, is not good sex. In fact, it is not even sex. It’s assault – sexual assault.